On the “Defense of Religious Freedom” and Marriage Equality

By Aaron Tabacco  (also published at his blog http://quorumoftheoutcasts.blogspot.com/)

          I will be the first to admit that as I was growing up, never did I foresee a time wherein homosexual citizens and their civil rights would even be acknowledged on a national level, let alone become the focus of a most heated and frankly ugly political battle. Frankly, as a gay teen growing up in the 1980s in a small, largely conservative community there was one abundant message I did receive with clarity: If you are gay, shut up, hide away, or get out. So 25 years later…a span which included joining the LDS (Mormon) Church, a mixed-orientation marriage (I married a straight woman), fathering three sons, surviving my own severe depression and suicidal activity and finally coming out…this entire national-level battle is in a word: surreal. I cannot believe I live in a time where 12-year-olds come out as gay, date and have typical adolescent experiences and now, in ever increasing numbers of US states, can grow up to get married and raise children. The world is becoming a different place. And I seriously think it is a difference for the better.
            There are many, of course, who disagree with me on that point. There are those who believe that the American culture and social fabric has not gotten better with advances in marriage and family equality, but rather has degraded. I hold that the beauty of the America I was born into as a gay citizen is that those who have different views from mine, particularly those that come from a deep religious conviction, are protected beliefs. I may not agree that homosexuality is sinful and I may not agree that homosexuals should be denied the civil rights of marriage and family. However, at the very core of my being, I would stand to fight and defend the constitutional rights of our religious citizens to hold and to express their diverse beliefs. I would put my own life on the line to ensure that those who are religious were not denied the freedoms of speech, belief, and association. That is the double-edge sword of living in a so-called free society: I must be willing to defend the very freedoms of those who believe the complete opposite from me. And so, I accept that as the price of citizenship.
            At the same time, however, it is important for me to recognize that the foundation of the separation of church and state, so vehemently advocated over and over again by founding father Thomas Jefferson is once again in a tenuous place. While the tide of public understanding and acceptance of homosexuality as a biological and social diversity is clearly moving forward, there are those who argue that by recognizing marriage equality as a constitutional right the government is crossing that line of separation. It seems impossible, from the discourse as I have experienced it, to clarify for those who believe differently from me, that this civil rights movement is not an attack on religious freedom. Though gay marriages are becoming legal as the civil contract that they are, no religious institution would ever be forced to perform such a marriage as contrary to their beliefs. And in fact, I look forward to a time when a gay couple, denied a marriage ceremony by their denomination does litigate the argument because it is very clear that the couple will lose such a case and provide the needed assurance of this fact to those fearing the worst. For the courts to demand a religious group to extend its beliefs on gay marriage is ludicrous. The government would, at that point, be clearly establishing itself as a religious power. And that in my opinion would be a no-brainer. I don’t believe any US Supreme Court Justice currently living, would go so far as to allow the government to dictate religious beliefs and doctrine. According to the doctrines of many predominant religious groups in the United States, homosexuality is sinful, unnatural, and cannot be supported through such an act as sacred to adherents as marriage. These beliefs cannot be regulated by the government without a clear violation of the First Amendment of the US Constitution. No church, synagogue, mosque, or other religious place could be forced to conduct a gay marriage. Only shifts of doctrines and religious culture could ever facilitate such a change which would obviously have to come internally through the adherents of a specific faith group. However, in spite of the clear logic of this argument, I find no way to make headway with anyone who clings to marriage equality as an encroachment upon so called “religious freedom.”
            So I find that the only thing I can do is address some of the other important aspects of this civil discourse that have been previously ignored. To that end, I feel compelled to write to clarify what is happening from the perspective of the heart of the problem: language. It is my observation that there is a great deal of rhetorical tactic used in this battle that must be called out and clarified. And at the heart of it at the moment, is the phrase “religious freedom” itself which seems to be the clear direction that marriage equality opponents are taking in their political objection.
What is religious freedom?
            According to the First Amendment of the US Constitution, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”1 this statement has been consistently interpreted to mean that the government shall not establish a state religion nor shall the government prohibit the free practice of religion. Therefore all religious belief must be free. There have however, been precedents which have clarified that the freedom of religious belief does not equate to the freedom of religious practice. Interestingly, it is the Church of Jesus Christ of Latter-day Saints (Mormon Church) itself which has tested this difference in thought in its historical practice of polygamy in the United States. In the mid 19th century, LDS members were literally driven from their homes, deprived of their lives and property and forced west (OUTSIDE of what was then the United States…get that?…forced to leave the country) because of their religious belief; forced literally outside the boundaries of the nation and its moral circle. This was clearly a violation of the constitutional rights of those who were citizens of the nation.  The courts of the time upheld that the US Constitution protected the freedom to be Mormon, but denied them the right to act Mormon. This is a massive irony given that, in relation to homosexuality, the official position of the Church of Jesus Christ of Latter-day Saints is that “same-sex attraction itself is not a sin, but yielding to it is.Essentially, it is acceptable to be gay but it is not acceptable to act gay.
            I will not digress into a discussion of the nature of homosexuality and the divergent views of it. That is a time-worn and frankly fruitless discussion. And as I stated earlier, I may view homosexuality from a very different belief system than some of my religious contemporaries, but I would place my own life at risk to protect the right to have and express that different belief. However it is also important to acknowledge that the government has taken steps in our history to differentiate protected beliefs from practices. Through the 19th century legal action of officially outlawing polygamy and (arguably) curtailing its practice, the nation eventually accepted that practices and beliefs were not equally protected by the constitution when it was deemed that the practice itself was harmful to individuals or society at large (e.g. human sacrifice as a religious practice, etc.)3
            With this precedent firmly in place, it became clear that the government established some ability to regulate the practices of religion, thought admittedly, not the beliefs. Because of this, I can understand quite well the animosity and fear that exists within religious groups related to their practices. Particularly the LDS Church which has worked intentionally for years to distance itself from the association with its former polygamous history. An in-depth reflection upon the 19th century interpretations of law (and blind eye toward acts of lawless immorality against the LDS people) leads one to conclude that these violations were unjust and motivated by nothing more than fear, ignorance, hatred and bigotry.  Interestingly, in the present context of the debates about gay marriage, the tides have turned. And those who were, over 150 years ago, persecuted and robbed of their rights as religious American citizens are now utilizing this same mentality to exercise group power over the rights of gay American citizens. Those religious leaders who object to gay marriage are taking the tactic of this beliefs vs. practice precedent and extending that argument to gay marriage through legal actions that cite religious and poorly supported academic sources affirming their belief that gays who marry and/or raise children are damaging or at best have unknown outcomes upon children4. Of course, this positioning is contrasted by much more rigorous and plentiful scientific literature on the topic that indicate sexual orientation or parental couple gender is irrelevant as it is not related to negative child health outcomes.5 It also harkens back to the rhetorical arguments against LDS polygamy which suggested the alternative form of marriage, if not outlawed, would lead to human sacrifice as a religious observance.
            There are fundamentally different beliefs on the two sides of this marriage equality debate, each side holding firm to their beliefs and evidence. Therefore it is clear that it is unlikely that arguing these differing beliefs is a fruitful direction in the name of social resolution on this matter. What is not clear in the minds of many however, are the definitions of religious freedom and marriage. It is this need that I wish to invite thinking persons everywhere to consider.
            First, it is the clear and unquestionable position of the laws of the United States that marriage is a civil contract. Was this not the case, marriage would not require legal recognition through licensing and regulation through family law. Marriage does not require the approval, sanctification, or permission of any religious body in order to be granted and acknowledged. It does, however, require the approval and permission of the government as a legal and binding contract. And as such, marriage is a civil act which comes with privileges and rights such as tax benefits, child custody, and inheritance, is cannot be denied to all citizens according to the Fourteen Amendment of the United States Constitution which states:
            “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”6
            Second, hearkening back to the statements of the First Amendment, it is clear that what cannot be dictated is the religious belief about marriage. Any all religious persons have the right to believe about marriage whatever their doctrine dictates; they may believe that gay marriage is wrong based upon any doctrine they choose. However these beliefs cannot dictate the practice of marriage as a civil contract. If that were the case, as I stated earlier, then the state would be in the business of religion. In reality, it is this very acknowledgement of marriage as a social contract in the power of the law that protects churches from solemnizing gay marriages should it be against their belief system. Gay citizens wishing to get married can most certainly be turned down for a religious ceremony because beliefs are protected and religious approvals or permissions are not even required. Instant protection of the freedom of religious belief is evident in the laws extending to the foundation of the county.
            And this is where the religious freedom argument against legalizing gay marriage falls apart, in my opinion; it is in the efforts to enact laws forbidding gay marriage as a civil right based on a religious belief. In this case, that is a massive encroachment of the line of separation between church and state and it stings of a 150-year pendulum swing for organizations like the LDS Church. Seeking to use political process and influence en massbased upon the belief that homosexuality is against the will of God and thus damaging to individuals and society is not a defense of religious freedom of belief (which is clearly NOT being impinged upon) but rather it is an act of religious control of the state. In this case it is not civil control of religious practice as was the case in polygamy in the 19th century, but rather it is the religious control of civil practice in the present day that is the conflict. Additionally, thepredominant religious voices in the national spotlight against gay marriage are not the total of religious voices on this matter. There are a number of denominations and sects within the Abrahamic realms of US culture that hold religious beliefs that gay marriage IS sanctified and acceptable as a fundamental part of their doctrine.7 Were singular religious beliefs about marriage to be imposed upon all persons in the United States religious or not, then that would be a clear violation of the United States Constitution. This is where religious freedom andreligious control can once again clearly differentiated. The state cannot define religious belief. To enact national and state legislation to prohibit homosexuals from marriage would be, quite simply, to enforce a singular religious belief upon the entire nation.
            “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
            How can anti-marriage equality legislation be a defense of religious freedom if only one religious point of view is permitted and codified into law, effectively merging religion and state into one? To me, this is a threat much larger to religious freedom than gay marriage ever was because it forces one to ask the question “which religions are permitted to have freedom?”
1. US Const. amend. I. Print.
2. Official Website of the Church of Jesus Christ of Latter-day Saints. Retrieved 1/10/2014 http://www.mormonsandgays.org/
3. U.S. Supreme Court. Reynolds v. U.S., 98 U.S. 145 (1878).
4. “Protect the Children”. Dallin H. Oaks. General Conference Address, Saturday Afternoon Session. October, 2012.
5. “Promoting the Wellbeing of Children Whose Parents are Gay or Lesbian.” Policy Statement. American Academy of Pediatrics. April, 2013.
6. US Const. amend. XIV. Print.
7. “LGBT-Affirming Religious Groups”. Retrieved 1/10/2014 http://en.wikipedia.org/wiki/LGBT-affirming_religious_groups

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